Two new reports analyse impact of trial waiver systems on defence rights in Hungary and Croatia

admin - May 15, 2019 - trial waiver systems, LEAP

Two new reports produced through LEAP analyse the impact of trial waiver systems on defence rights in two EU countries, Hungary and Croatia, where they have recently undergone reforms to facilitate accelerated, cost effective and efficient criminal proceedings. As trial waiver systems are on the rise globally, we have teamed up with local experts to better understand the scope of the practice and its potential implications for human rights and rule of law protection in Hungary and Croatia. While trial waiver systems certainly have their advantages, this shift away from the full guarantees of a trial also poses challenges to rights protection and the rule of law.

In 2017, Fair Trials’ report ‘The Disappearing Trial’ revealed that where proper safeguards are not in place, trial waivers can have a hugely negative impact on human rights. This includes an erosion of procedural protections, such as the right to access a lawyer, the right to disclosure of evidence, and proper judicial review. The cases of Croatia and Hungary show that concerns remain about the respect of fundamental defence rights and the need to humanize the criminal justice system.

Croatia’s 2008 and 2013 criminal law reforms widened the scope for plea bargaining to all criminal offences, despite not having conducted a prior assessment of their possible impacts on criminal justice. Concerns remain regarding the coercive element of plea bargaining in cases where there is a disproportionately high perceived benefit to pleading guilty. The report recommends limiting the scope of criminal offences to ensure that harsh sentences and pre-trial detention do not influence defendants’ free will, leading innocent people to plead guilty.

Croatian criminal law features important procedural safeguards, including mandatory participation of a defence lawyer throughout the procedure in order for a trial waiver to be considered valid. The Access to a Lawyer Directive has generally improved the rights of defendants during plea bargaining in Croatia, since “a suspect has a right to a defence counsel before and during any police questioning, and so, the right to remain silent is better guaranteed and the defendant is in a better starting position for possible negotiations with the state attorney,” the report concluded. Another effective procedural safeguard against abuse is judicial scrutiny of the procedure. However, the report notes that although judges question defendants to verify that they have understood the plea agreement, they do not always check whether the trial waiver is being entered into voluntarily.

Hungary’s new confession-based trial waiver systems put greater emphasis on the cooperation between the defendant and the prosecution and include important procedural safeguards to ensure that trial waivers are voluntarily and intelligently made. In Hungary, judges independently scrutinise the defendant’s confession, as well as the procedure. “If there is the smallest doubt that the person actually committed the confessed criminal act, the settlement cannot be concluded, and the case will have to go to trial,” the report explains.

Hungary’s new criminal code, which entered into force in 2018, also guarantees the mandatory presence of a defence, as well as the right to active participation in evidence assessment. However, issues remain for those who cannot afford a lawyer, since legal aid fees need to be covered by defendants who have plead guilty. Although the new criminal law widens the possibility of initiating a trial waiver for the defence, the report also highlights that there have been numerous cases in practice in which the defence counsel does not have access to all case files during the investigation phase – a right protected by the Right to Information Directive. The reportrecommends adopting a legal requirement for the prosecution to take detailed minutes of the negotiations in a room equipped with audio-visual recording.

In both countries, trial waivers remain infrequent, inconsistent and sporadic. While their advantages are clear in terms of cost, time, and efficiency, the two reports suggest that they may also weaken defence rights. Both reports recommend implementing a more systematic and comprehensive approach to the rule of law and human rights implications of the practice to protect fundamental rights, ensure transparency, and prevent the deterioration of the public perception of the criminal justice system.

In 2019, Fair Trials is embarking on a new research project examining how EU Directives on the procedural rights of suspected and accused persons are effectively implemented during trial waiver proceedings in the EU. The project aims to prevent the spread of trial waiver systems from fundamentally undermining the positive progress that the EU has brought about in criminal justice in Europe.

Activities in the following sections on this website are supported by the Justice Programme of the European Union: Legal Experts Advisory Panel, Defence Rights Map, Case Law Database, Advice Guides and Latest News. More information about our financial supporters is available here.